Friday, August 19th, 2022

Panel holds, over dissent, that non-disclosure of 5,000 pages of complainant’s psychiatric records is not an unreasonable application of Brady

The 2010 New York trial at issue in McCray v. Capra, 18-2336 (2d Cir. Aug. 17, 2022), an appeal of a state habeas corpus denial, was a pure credibility contest: the complainant testified she was violently raped; McCray testified the encounter was consensual but the two struggled afterward when she tried to steal from him; and both parties had injuries.

Prior to trial, however, and as often occurs in New York, after the prosecution disclosed the complainant’s psychiatric history, the trial judge examined her mental health records in camera for Brady material. Although there were over 5,000 pages of records, the judge only turned over 28 pages to the defense. McCray’s ensuing first-degree rape conviction was affirmed in the Appellate Division and New York Court of Appeals, both of which were closely-divided on the Brady non-disclosure issue he raised.

On appeal of the denial of McCray’s N.D.N.Y. habeas petition, the Circuit (Judge Sullivan, joined by Judge Lynch), held that the state judge’s non-disclosure of the full set of records was not an unreasonable application of Brady v. Maryland, 373 U.S. 83 (1963). In the majority’s view, the undisclosed records did not meet Brady’s “materiality” prong. The 28 pages the defense obtained contained a “remarkable amount of information” about the complainant’s serious history of mental illness, abuse, medication non-compliance, hallucinations, and atypical behaviors. And she testified during direct and cross-examination about her diagnoses and medications, both generally and around the time of the event. See Slip Op. at 14-15. The defense thus had “ample material” for impeachment and, upon the majority’s own review of the undisclosed records, there was “nothing . . . that could further impeach the victim to such an extent that our ‘confidence in the outcome of the trial’ would be compromised.” Slip Op. at 16 (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)). The Circuit also held that there is no binding Supreme Court precedent applying the Confrontation Clause to pre-trial discovery. Accordingly, it affirmed.

Judge Jacobs dissented as to the Brady issue. (The second dissent in a criminal case in one week.) The main problem, in Judge Jacobs’s view, was that numerous undisclosed records suggested something not found in the disclosed records: that the complainant suffered from a “pathological misperception of the truth.” Dissent at 7-15. Armed with these documents, the defense could have persuaded jurors “to reconcile the conflicting accounts, treating his as true and hers as sincerely held delusion.” Dissent at 15. Judge Jacobs also criticized the majority for failing to “recognize the dynamic force of disclosure in the hands of a lawyer.” Dissent at 17-20.

The dissent covers a lot of other ground, however, and is worth reading in its entirety (for example, see the “zombies” reference on p. 7). It ultimately closes with several pithy observations, including this: “I don’t know what happened in that abandoned house; but it is clear what is happening here. This is a sinister abuse. The last-ditch defense of such a conviction by the Attorney General is disreputable. Were I a lawyer for the State, I would not have been able to sign the brief it filed on this appeal.” Dissent at 23. Unsurprisingly, given the dissent’s length and rhetoric, the majority devotes significant attention to engaging with it. See pages 17-23 of the Slip Opinion.

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